Senate Bill No. 282
(By Senators Ross, Anderson, Minard, Snyder, Unger and
Minear)
__________
[Introduced March 2, 2001; referred to the
Committee on Natural Resources;
and then to the Committee on the Judiciary.]
__________
A BILL to amend and reenact section one, article three,
chapter sixty-four of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, relating
to authorizing the division of environmental protection
to promulgate a legislative rule relating to hazardous waste management.
Be it enacted by the Legislature of West Virginia:
That section one, article three, chapter sixty-four of
the code of West Virginia, one thousand nine hundred
thirty-one, as amended, be amended and reenacted to
read as follows:
ARTICLE 3. AUTHORIZATION FOR BUREAU OF ENVIRONMENT TO
PROMULGATE
LEGISLATIVE RULES.
§64-3-1. Division of environmental protection.
(a) The legislative rule filed in the state register on
the sixth day of August, one thousand nine hundred
ninety-nine, authorized under the authority of section
four, article five, chapter twenty-two of this code,
modified by the division of environmental protection to
meet the objections of the legislative rule-making
review committee and refiled in the state register on
the twenty-sixth day of October, one thousand nine
hundred ninety-nine, relating to the division of
environmental protection (to prevent and control air
pollution from the emission of sulfur oxides, 45 CSR
10), is authorized with the following amendments:
On page nine, paragraph 8.2.c.3., after the word "Director" by striking out the remainder of the
sentence;
On page nine, subdivision 8.3.a., in the last sentence,
by striking out the word "two" and inserting in lieu
thereof the word "five";
On page nine, subdivision 8.3.b., after the words "by
the Director" by striking out the remainder of the
sentence;
On page nine, subdivision 8.3.c., after the words "by
the Director" by striking out the remainder of the
sentence;
And;
On page nine, by striking out subdivision 8.3.e in its
entirety and inserting in lieu thereof a new
subdivision 8.3.e to read as follows:
8.3.e.1. The Director shall respond within five working
days to requests for information generated or required
under this rule. Requests for information not in the
Director's custody shall be promptly forwarded to the
appropriate federal or state agency known to have such
information.
8.3.e.2. Data regarding the compliance reporting of
electric utility SO
2
emissions is available from the
U.S. Environmental Protection Agency (EPA). Requests
for EPA emissions data should be sent to: EPA Clean
Air Marketing Division, 501 3rd Street NW, Washington,
D.C. 20001 or online at http://www.epa.gov/acidrain/
edata.html. Data relating to fuel quality and costs of
fuels are available at the Federal Energy Regulatory
Commission (FERC) and the West Virginia Public Service
Commission. Requests for FERC data should be sent to
David P. Boergers, Secretary, Federal Energy Regulatory
Commission, 888 First Street NE, Washington, D.C. 20426
or online at
http://www.ferc.fed.us/electric/f423/form423.htm.
Requests for PSC data should be sent to: The West
Virginia Public Service Commission, Utility Division,
P.O. Box 812, Charleston, W. Va. 25323-0812.
(b) The legislative rule filed in the state register on
the fifth day of August, one thousand nine hundred
ninety-nine, authorized under the authority of section
four, article five, chapter twenty-two of this code, relating to the division of environmental protection
(ambient air quality standard for nitrogen dioxide, 45
CSR 12), is authorized.
(c) The legislative rule filed in the state register on
the seventeenth day of December, one thousand nine
hundred ninety-nine, authorized under the authority of
section four, article five, chapter twenty-two of this
code, modified by the division of environmental
protection to meet the objections of the legislative
rule-making review committee and refiled in the state
register on the twenty-fifth day of January, two
thousand, relating to the division of environmental
protection (permits for construction, modification,
relocation and operation of stationary sources of air
pollutants, notification requirements, administrative
updates, temporary permits, general permits and
procedures for evaluation, 45 CSR 13), is authorized
with the following amendments:
On page 5, paragraph 2.17.f.6, by striking out the
words "Upon written request, the Director may determine
that a physical change results in";
And,
On page 5, paragraph 2.17.f.6, at the end of the
paragraph, by changing the period to a colon and
inserting the words "provided that the owner or
operator of the source shall notify the Director of
such replacement and the emissions reduction within ten
(10) working days of the replacement."
(d) The legislative rule filed in the state register on
the fifth day of August, one thousand nine hundred
ninety-nine, authorized under the authority of section
four, article five, chapter twenty-two of this code,
relating to the division of environmental protection
(standards of performance for new stationary sources,
45 CSR 16), is authorized.
(e) The legislative rule filed in the state register on
the sixth day of August, one thousand nine hundred
ninety-nine, authorized under the authority of section
four, article five, chapter twenty-two of this code,
modified by the division of environmental protection to
meet the objections of the legislative rule-making
review committee and refiled in the state register on the twenty-fourth day of September, one thousand nine
hundred ninety-nine, relating to the division of
environmental protection (to prevent and control
particulate matter air pollution from materials
handling, preparation, storage and other sources of
fugitive particulate matter, 45 CSR 17), is authorized.
(f) The legislative rule filed in the state register on
the fifth day of August, one thousand nine hundred
ninety-nine, authorized under the authority of section
four, article five, chapter twenty-two of this code,
relating to the division of environmental protection
(to prevent and control particulate air pollution from
direct meat-firing devices, 45 CSR 18), is authorized.
(g) The legislative rule filed in the state register on
the sixth day of August, one thousand nine hundred
ninety-nine, authorized under the authority of section
four, article five, chapter twenty-two of this code,
modified by the division of environmental protection to
meet the objections of the legislative rule-making
review committee and refiled in the state register on
the twenty-seventh day of August, one thousand nine hundred ninety-nine, relating to the division of
environmental protection (to prevent and control
particulate air pollution from combustion of fuel in
indirect heat exchangers, 45 CSR 2), is authorized with
the following amendments:
On page seven, subdivision 8.1.a., in the last
sentence, after the words "by the Director" by striking
out the remainder of the sentence;
On page eight, subdivision 8.3.a, by adding a new
sentence at the end of the subdivision to read as
follows: Such records shall be retained on-site for a
minimum of five years.;
On page eight, subdivision 8.3.b, in the first
sentence, after the words "by the Director" by striking
out the remainder of the sentence;
On page eight, subdivision 8.3.c, in the first
sentence, after the words "by the Director" by striking
out the remainder of the sentence;
On page eight, subdivision 8.4.c., after the word
"subsection" by striking out the number "8.4" and
inserting in lieu thereof the number "8.2";
And;
On page nine, by striking out subsection 8.5. in its
entirety and inserting in lieu thereof a new subsection
8.5. to read as follows:
8.5.a. The Director shall respond within five working
days to requests for information generated or required
under this rule. Requests for information not in the
Director's custody shall be promptly forwarded to the
appropriate federal or state agency known to have such
information.
8.5.b. Data relating to electric utilities and fuel
quality and costs of fuels are available from the
Federal Energy Regulatory Commission (FERC) and the
West Virginia Public Service Commission (PSC).
Requests for FERC data should be sent to David P.
Boergers, Secretary, Federal Energy Regulatory
Commission, 888 First Street NE, Washington, D.C. 20426
or online at http://www.ferc.
fed.us/electric/f423/form423.htm.
Requests for PSC
data should be sent to: The West Virginia Public
Service Commission, Utility Division, P.O. Box 812, Charleston, W. Va. 25323-0812.
(h) The legislative rule filed in the state register on
the sixth day of August, one thousand nine hundred
ninety-nine, authorized under the authority of section
four, article five, chapter twenty-two of this code,
modified by the division of environmental protection to
meet the objections of the legislative rule-making
review committee and refiled in the state register on
the twenty-sixth day of October, one thousand nine
hundred ninety-nine, relating to the division of
environmental protection (to prevent and control
emissions from municipal solid waste landfills, 45 CSR
23), is authorized.
(i) The legislative rule filed in the state register on
the twenty-second day of December, one thousand nine
hundred ninety-nine, authorized under the authority of
section four, article five, chapter twenty-two of this
code, relating to the division of environmental
protection (to prevent and control emissions from
hospital, medical, and infectious waste incinerators,
45 CSR 24), is authorized.
(j) The legislative rule filed in the state register on
the fifth day of August, one thousand nine hundred
ninety-nine, authorized under the authority of section
four, article five, chapter twenty-two of this code,
relating to the division of environmental protection
(to prevent and control air pollution from hazardous
waste treatment, storage or disposal facilities, 45 CSR
25), is authorized.
(k) The legislative rule filed in the state register on
the first day of February, one thousand nine hundred
ninety-nine, authorized under the authority of section
eighteen, article five, chapter twenty-two of this
code, modified by the division of environmental
protection to meet the objections of the legislative
rule-making review committee and refiled in the state
register on the twenty-first day of January, two
thousand, relating to the division of environmental
protection (air pollutant emissions banking and
trading, 45 CSR 28), is authorized.
(l) The legislative rule filed in the state register on
the sixth day of August, one thousand nine hundred ninety-nine, authorized under the authority of section
four, article five, chapter twenty-two of this code,
modified by the division of environmental protection to
meet the objections of the legislative rule-making
review committee and refiled in the state register on
the twenty-seventh day of August, one thousand nine
hundred ninety-nine, relating to the division of
environmental protection (to prevent and control air
pollution from the operation of hot mix asphalt plants,
45 CSR 3), is authorized.
(m) The legislative rule filed in the state register
on the fifth day of August, one thousand nine hundred
ninety-nine, authorized under the authority of section
four, article five, chapter twenty-two of this code,
relating to the division of environmental protection
(acid rain provisions and permits, 45 CSR 33), is
authorized.
(n) The legislative rule filed in the state register on
the fifth day of August, one thousand nine hundred
ninety-nine, authorized under the authority of section
four, article five, chapter twenty-two of this code, relating to the division of environmental protection
(emission standards for hazardous air pollutants
pursuant to 40 CFR Part 63, 45 CSR 34), is authorized.
(o) The legislative rule filed in the state register on
the sixth day of August, one thousand nine hundred
ninety-nine, authorized under the authority of section
four, article five, chapter twenty-two of this code,
modified by the division of environmental protection to
meet the objections of the legislative rule-making
review committee and refiled in the state register on
the twenty-fourth day of September, one thousand nine
hundred ninety-nine, relating to the division of
environmental protection (to prevent and control air
pollution from the operation of coal preparation
plants, coal handling operations and coal refuse
disposal areas, 45 CSR 5), is authorized.
(p) The legislative rule filed in the state register on
the sixth day of August, one thousand nine hundred
ninety-nine, authorized under the authority of section
four, article five, chapter twenty-two of this code,
relating to the division of environmental protection (to prevent and control air pollution from combustion
of refuse, 45 CSR 6), is authorized.
(q) The legislative rule filed in the state register on
the sixth day of August, one thousand nine hundred
ninety-nine, authorized under the authority of section
four, article five, chapter twenty-two of this code,
modified by the division of environmental protection to
meet the objections of the legislative rule-making
review committee and refiled in the state register on
the twenty-fourth day of September, one thousand nine
hundred ninety-nine, relating to the division of
environmental protection (to prevent and control
particulate matter air pollution from manufacturing
processes and associated operations, 45 CSR 7), is
authorized.
(r) The legislative rule filed in the state register on
the twenty-second day of December, one thousand nine
hundred ninety-nine, authorized under the authority of
section four, article five, chapter twenty-two of this
code, modified by the division of environmental
protection to meet the objections of the legislative rule-making review committee and refiled in the state
register on the twenty-fifth day of January, two
thousand, relating to the division of environmental
protection (ambient air quality standards for sulfur
oxides and particulate matter, 45 CSR 8), is
authorized.
(s) The legislative rule filed in the state register on
the twenty-second day of December, one thousand nine
hundred ninety-nine, authorized under the authority of
section four, article five, chapter twenty-two of this
code, modified by the division of environmental
protection to meet the objections of the legislative
rule-making review committee and refiled in the state
register on the twenty-fifth day of January, two
thousand, relating to the division of environmental
protection (ambient air quality standards for carbon
monoxide and ozone, 45 CSR 9), is authorized.
(t) The legislative rule filed in the state register on
the twenty-fourth day of September, one thousand nine
hundred ninety-nine, authorized under the authority of
section three, article three-a, chapter twenty-two of this code, modified by the division of environmental
protection to meet the objections of the legislative
rule-making review committee and refiled in the state
register on the twenty-first day of January, two
thousand, relating to the division of environmental
protection (surface mining blasting, 199 CSR 1), is
authorized.
(u) The legislative rule filed in the state register on
the thirtieth day of July, one thousand nine hundred
ninety-nine, authorized under the authority of section
three, article one, chapter twenty-two of this code,
modified by the division of environmental protection to
meet the objections of the legislative rule-making
review committee and refiled in the state register on
the twenty-first of January, two thousand, relating to
the division of environmental protection (surface
mining and reclamation rule, 38 CSR 2), is authorized
with the following amendments:
On page 4, by inserting a new subsection 2.31 to read
as follows:
'2.31. Commercial Forestry And Forestry.
2.31.a. Commercial Forestry, as used in Subsection 7.4
of this rule, means a long-term postmining land use
designed to accomplish the following: (1) Achieve
greater forest productivity than that found on the mine
site before mining; (2) Minimize erosion and/or
sediment yield and serve the hydrologic functions of
infiltrating, holding, and yielding water commonly
found in undisturbed forests; (3) Result in
biodiversity by facilitating rapid recruitment of
native species of plants and animals via the process of
natural succession; (4) Result in a premium forest that
will thrive under stressful conditions; and (5) Result
in landscape, vegetation and water resources that
create habitat for forest-dwelling wildlife.
2.31.b. Forestry, as used in Subsection 7.4 of this
rule, means a long-term postmining land use designed to
accomplish the following: (1) Achieve forest
productivity equal to that found on the mine site
before mining; (2) Minimize erosion and/or sediment
yield and serve the hydrologic functions of
infiltrating, holding, and yielding water commonly found in undisturbed forests; (3) Result in
biodiversity by facilitating rapid recruitment of
native species of plants and animals via the process of
natural succession; and (4) Result in landscape,
vegetation and water resources that create habitat for
forest-dwelling wildlife."
and renumber the subsequent subsections;
On page twelve, by striking subsection 2.136, the
definition of 'woodlands' in its entirety and renumber
the subsequent subsections;
On page 68, section 7.2.i, by striking the word
'Woodland' and inserting in lieu thereof the word
'Forestry.'
On page 68, following section 7.3.c., by inserting the
following:
'7.3.c. A change in postmining land use to grassland
uses such as rangeland and/or hayland or pasture is
prohibited on operations that obtain an approximate
original contour variance described in WV Code §22-3-
13(b)(25)(c). Provided, however, That this subdivision
is not effective until Sections 7.4 and 7.5 of this rule are approved by the federal Office of Surface
Mining.
7.4. Standards Applicable to Approximate Original
Contour Variance Operations With a Postmining Land Use
of Commercial Forestry and Forestry.
7.4.a. Applicability.
7.4.a.1. Commercial Forestry and forestry may be
approved as a post mining land use for surface mining
operations that receive variances from the general
requirement to restore the postmining site to its
approximate original contour. An applicant may request
AOC variance for purposes of this section for the
entire permit area or any segment thereof. Either
commercial forestry or forestry shall be established on
all portions of the permit area. Provided, that the
faces of valley fills shall be reclaimed as described
in 7.4.b.1.J of this rule.
7.4.b. Requirements.
7.4.b.1.The Director may authorize commercial forestry
and forestry as a postmining use only if the following
conditions have been satisfied.
7.4.b.1.A. Planting and Management Plan Development.
7.4.b.1.A.1. A registered professional forester shall
develop a planting plan and long-term management plan
for the permitted area that meets the requirements of
the West Virginia Surface Coal Mining and Reclamation
Act. These plans shall be made a part of the surface
mining permit application and shall be the basis for
determining the capability of the applicant to meet the
requirements of this rule. The plans shall be in
sufficient detail to demonstrate that the requirements
of the commercial forestry and forestry uses can be
met. The plans shall contain a signed statement of
intent from the landowner demonstrating its commitment
to long-term implementation and management in
accordance with the plan. Once final bond release is
authorized, the permittee's responsibility for
implementing the long-term management plan ceases.
Upon final bond release, the jurisdiction of the
Director over the permittee, the operator, the
landowner or any other responsible party shall cease.
The minimum required content of these plans shall be as follows:
7.4.b.1.A.2. The landowner or other responsible party
shall submit their objectives for achieving commercial
forestry and forestry postmining land uses. The
Director may approve the uses only when the planting
plan and long term management plan demonstrate that the
forest will be managed only for long term forest
products, such as sawlogs or veneer, that take 50 to 80
years to mature.
7.4.b.1.A.3. A commercial species planting plan and
prescription shall be developed by the registered
professional forester to achieve the commercial
forestry and forestry use. The plan shall include the
following:
7.4.b.1.A.3.(a) A topographic map of the permit area,
1:12000 or finer, showing the mapped location of
premining native soil. A description of each soil
mapping unit that includes, at minimum, total depth and
volume to bedrock, soil horizons, including the O, A,
E, B, C, and Cr horizon depths, soil texture,
structure, color, reaction and bedrock type and a site index for common native tree species. An approved
certified professional soil scientist shall conduct a
detailed on-site survey, create the maps, and provide
the written description of the soils. As part of the
field survey, the soil scientist shall map and certify
the slopes that are 50% or less with a confidence level
of ± 2%.
7.4.b.1.A.3.(b) An approved geologist shall create a
certified geology map showing the location, depth, and
volume of all strata in the mined area, the physical
and chemical properties of each stratum to include rock
texture, pH, potential acidity and alkalinity, total
soluble salts, degree of weathering, extractable levels
of phosphorus, potassium, calcium, magnesium,
manganese, and iron and other properties required by
the director to select best available materials for
minesoils.
7.4.b.1.A.3.(c) A description of the present soils and
soil substitutes to be used as the plant medium and the
proposed handling, and placement of these materials.
The handling plan shall include procedures to:
7.4.b.1.A.3.(c)(1) protect native soil organisms and
the native seed pool;
7.4.b.1.A.3.(c)(2) include organic debris such as
litter, branches, small logs, roots, and stumps in the
soil;
7.4.b.1.A.3.(c)(3) inoculate the minesoil with native
soil organisms;
7.4.b.1.A.3.(c)(4) increase soil fertility; and
7.4.b.1.A.3.(c)(5) encourage plant succession.
7.4.b.1.A.3.(d) A surface preparation plan which
includes a description of the methods for replacing and
grading the soil and other soil substitutes and their
preparation for seeding and tree planting.
7.4.b.1.A.3.(e) Liming and fertilization plans.
7.4.b.1.A.3.(f) Mulching type, rates and procedures.
7.4.b.1.A.3.(g) Species seeding rates and procedures
for application of perennial and annual herbaceous,
shrub, and vine plant materials for ground cover.
7.4.b.1.A.3.(h) A tree planting prescription to
establish commercial forestry and forestry, to include
species, stems per acre, planting mixes, and site-specific planting arrangements to maximize
productivity.
7.4.b.1.A.4. A long-term management plan shall be
developed by a registered professional forester. The
plan shall include:
7.4.b.1.A.4.(a) A topographic map, with a minimum scale
of 1:12000 shall be used to show the boundaries and
extent of the proposed surface mining operation, the
boundaries of areas being planned for commercial
forestry and forestry land uses, and the proposed
postmining surface configuration, stream drainages and
wetlands, and the plant species mix that will be
planted in each area.
7.4.b.1.A.4.(b) A proposed schedule of all
silvicultural activities necessary to develop the
forest resources for commercial forestry and forestry.
7.4.b.1.A.4.(c) A description of activities necessary
to protect the forest resources from vandalism,
wildfire, insects, diseases, exotic organisms and
herbivory detrimental to long-term success.
7.4.b.1.A.4.(d) A plan to assure forest access for future management, protection, and eventual utilization
of the forest resources. The plan shall be developed
to minimize adverse environmental impacts, including
additional road building and other land disturbances.
Forestry best management practices shall be followed.
7.4.b.1.A.4.(e) A plan for using forestry best
management practices to minimize silvicultural and
harvesting impacts on the permit area and on waters of
the State. Best Management Practices shall be
sufficient to assure compliance with applicable State
and Federal water quality standards.
7.4.b.1.A.5. A signed statement from the permittee
containing financial information and data sufficient to
demonstrate:
7.4.b.1.A.5.(a) That achieving the commercial forestry
use is practicable with respect to the private
financial capability necessary to achieve the use; and
7.4.b.1.A.5.(b) That the commercial forestry use will
be obtainable according to data regarding expected need
and market.
7.4.b.1.A.6. Two copies of the planting plan, management plan, pertinent maps and statement of intent
shall be submitted to the appropriate Division of
Forestry District Forester and two copies of each plan
shall be submitted to the Director of the Division of
Environmental Protection.
7.4.b.1.B. Oversight Procedures for Achieving
Commercial Forestry and Forestry.
7.4.b.1.B.1. Before approving a commercial forestry and
forestry reclamation plan, the Director shall assure
that the planting plan, long-term management plan, and
statement of intent are reviewed and approved by a
registered professional forester employed either by the
West Virginia Division of Forestry or the Director of
the Division of Environmental Protection and that a
certified professional soil scientist employed by the
Director reviews and field verifies the soil slope and
sandstone mapping. Before approving the reclamation
plan, the Director shall assure that the reviewing
forester has made site-specific written findings
adequately addressing each of the elements of the plans
and statements. The reviewing forester and soil scientist shall make these findings within 45 days of
receipt of the plans and maps.
7.4.b.1.B.2. If after reviewing the plans, the
reviewing forester and soil scientist find that the
plans and statements comply with the requirements of
this land use, they shall prepare written findings
stating the basis of approval. A copy of the findings
shall be sent to the Director and to the surface mining
permit supervisor for the region in which the permit is
located. The written findings shall be made part of
the facts and findings section of the surface mining
permit application file. The Director shall assure
that the plans and statements comply with the
requirements of this rule and other provisions of the
approved State surface mining program.
7.4.b.1.B.3. If the reviewing forester finds the plans
to be insufficient, the forester shall either:
7.4.b.1.B.3.(a) Contact the preparing forester or the
permittee and provide the permittee with an opportunity
to make the changes necessary to bring the reclamation
plan into compliance with the regulations, or
7.4.b.1.B.3.(b) Notify the Director that the
reclamation plan does not meet the requirements of the
regulations. The Director may not approve the surface
mining permit until finding that the reclamation plans
satisfy all of the requirements of the regulations.
7.4.b.1.C. Landscape Criteria.
7.4.b.1.C.1. For commercial forestry, the Director
shall assure that the postmining landscape is rolling,
and diverse. The backfill on the mine bench shall be
configured to create a postmining topography that
includes the principles of landforming (e.g. the
creation of swales) to reflect the premining
irregularities in the land. Postmining landform shall
provide a rolling topography with slopes of both 5% and
15% with an average slope of 10% to 12.5%. The
elevation change between the ridgeline and the valleys
shall be varied. The slope lengths shall not exceed
500 feet. The minimum thickness of backfill, including
minesoil, placed on the pavement of the basal seam
mined in any particular area shall be ten (10) feet.
7.4.b.1.C.2. For commercial forestry, the surface drainage pattern shall contain watersheds of various
sizes shall exhibit a dendritic drainage pattern that
simulates the premining pattern, and shall include the
drainage channels, sediment control or other water
retention surfaces, which shall remain on the site
after bond release.
7.4.b.1.C.3. For commercial forestry, in areas where
drainage channel design criteria do not mandate erosion
control materials, and in other drainage areas where
applicable, bioengineering techniques such as fascines,
branch packings, live crib walls, and plantings of
native herbs and shrubs appropriate for the site shall
be used, to the extent possible, to increase the site
biodiversity. Only native stone shall be used for
erosion control.
7.4.b.1.C.4. For commercial forestry, at least 3 ponds,
permanent impoundments or wetlands totaling at least
3.0 acres shall be created on each 200 acres of
permitted area. They shall be dispersed throughout the
landscape and each water body shall be no smaller than
0.20 acres. All ponds, permanent impoundments or wetlands shall be subject to the requirements of
subsection 5.5 of this rule, and shall be left in place
after final bond release. The substrate of the ponds
and wetlands must be capable of retaining water to
support aquatic and littoral vegetation.
7.4.b.1.C.5. For forestry, all ponds and impoundments
created during mining shall be left in place after bond
release and shall be subject to the requirements of
section 5.5 of the Rules, except for ponds and
impoundments located below the valley fills. The
substrate of the ponds and wetlands must be capable of
retaining water to support aquatic and littoral
vegetation.
7.4.b.1.C.6. Before Phase III bond release may be
approved, the ponds, permanent impoundments or
wetlands used to satisfy parts 7.4.d.1.C.4. and 5. of
this rule shall be vegetated on the perimeter with at
least six native herbaceous species typical of the
region at a density of not less than 1 plant per linear
foot of edge, and at least 4 native shrub species at a
density of not less than 1 shrub per 6 linear feet of edge. No species of herbaceous or shrub species shall
be less than 15% of the total for its life form. This
requirement may be met by planted vegetation or that
which naturally colonizes the site.
7.4.b.1.C.7. The landscape criteria in parts
7.4.d.1.C.1., 2., 3., 4., 5., and 6. above, do not
apply to valley fills.
7.4.b.1.D. Soil and Soil Substitutes.
7.4.b.1.D.1. Soil is defined as and shall consist of
the O, A, E, B, C and Cr horizons.
7.4.b.1.D.2. The Director shall require the operator to
recover and use the soil volume equal to the total soil
volume on the mined area, as shown on the soil maps and
survey except for those areas with a slope of at least
50%. The Director shall assure that all saved soil
includes all of the material from the O through Cr
horizons.
7.4.b.1.D.3. When the soil volume recovered in
7.4.b.1.D.2. above, is insufficient to meet the depth
requirements, selected overburden materials may be used
as soil substitutes. In such cases, the Director shall require the operator to recover and use all of the
weathered, slightly acid brown sandstone from within
ten (10) feet of the soil surface on the mined area.
This weathered, slightly acid, brown sandstone material
may contain or be supplemented with up to 25% by-volume
weathered, slightly acid brown shale or siltstone from
within ten (10) feet of the soil surface. Material
from this layer may be removed with the soil and mixed
with the soil in order to meet the depth requirement.
Provided, that once the operator has recovered material
sufficient to meet the depth requirements, it may cease
recovering such material.
7.4.b.1.D.4. When the materials described in
7.4.b.1.D.2. and 3. of this rule are insufficient to
meet the depth requirements, then the Director shall
require the operator to recover and use all of the
weathered, slightly acid, brown sandstone from below
ten feet of the soil surface on the mined area.
Provided, that once the operator has recovered material
sufficient to meet the depth requirements, it may cease
recovering such material.
7.4.b.1.D.5. If the applicant affirmatively
demonstrates that the materials described in
7.4.b.1.D.2., 3., and 4. of this rule within the mined
area are insufficient to meet the depth requirements,
then up to 2/3 of the minesoil may consist of the best
available material or mix of materials.
7.4.b.1.D.6. Before approving the use of soil
substitutes, the Director shall require the permittee
to demonstrate that the selected overburden material is
suitable for restoring land capability and
productivity. This will be demonstrated by the results
of chemical and physical analyses that show that this
material is at least 75% sandstone, has at least 15%
fines (<2mm), has a net acid-base accounting between -3
and +3 calcium carbonate equivalent per 1000 tons of
material excluding siderite effects, a soluble salt
level less than 1.0 mmhos/cm, to result in a long-term
equilibrium pH of between 5.0 and 6.5 and additional
analyses as the Director deems necessary. If this
spoil is made up of strongly contrasting materials with
respect to acid/base accounting these materials shall be blended.
7.4.b.1.D.7. The minesoils shall be distributed across
the disturbed areas, except the faces of valley fills,
in a uniform and consistent mix.
7.4.b.1.D.8. For commercial forestry, the final surface
material used as the planting and growth medium
(hereinafter referred to as commercial forestry
minesoil) shall consist of a minimum of four feet, and
an average of at least five feet, of soil or a mixture
of materials consisting of no less than one-third soil
and two-thirds of the materials described in
7.4.b.1.D.3. and 4. of this rule.
7.4.b.1.D.9. For forestry, the final surface material
used as the planting and growth medium (forestry
minesoil) shall consist of a minimum of 4 feet of soil,
or a mixture of soil and suitable soil substitutes
described in 7.4.b.1.D.4 through 6 of this rule.
7.4.b.1.D.10. Commercial forestry minesoil shall be
placed on that portion of the mined area which receives
an AOC variance. For a proposed mine permit area or
any specifically defined segment of the proposed permit area that does not satisfy the volumetric criteria for
AOC, an AOC variance shall be required. In order to
define the portion of the permit classified as AOC-
compliant or AOC-variant, the permit may be divided
into segments. The number of segments shall not exceed
the number of excess spoil disposal areas proposed and
each segment shall include at least one associated
fill. In no event will there be more variance segments
than there are excess spoil disposal areas on the
permit area. For each segment, the AOC status shall be
defined as complying with AOC if that segment meets the
backfill volume, valley fill design, backfill
inflection point tests and other criteria as described
in the AOC policy adopted by the Director.
7.4.b.1.D.11. Forestry minesoil shall, at a minimum, be
placed on all areas achieving AOC.
7.4.b.1.D.12. If the applicant does not demonstrate
that there is sufficient material available on the
permit area to satisfy the requirements of 7.4.d.1.D.,
then the Director may not authorize this postmining
land use.
7.4.b.1.D.13. The Director shall require the operator
to include, as part of the commercial forestry and
forestry minesoil mix, organic debris such as forest
litter, branches, small logs, roots and stumps in the
soil to help reseed and resprout the native vegetation,
inoculate the minesoil with native soil organisms,
increase soil fertility, and encourage plant
succession.
7.4.b.1.D.14. The Director shall require that soil be
removed and reapplied in a manner that minimizes
stockpiling to protect seed pools and soil organisms.
Only soil removed from the mined area during the one-
year period immediately following commencement of soil
removal may be placed in a long-term stockpile. Except
for soil in a long-term stockpile, soil redistribution
shall be done within six months of soil removal.
Except for soil in a long-term stockpile, soil shall be
stored for less than six months in piles less than six
feet high and 24 feet wide in a stable area within the
permit area where it will not be disturbed and will be
protected from water or wind erosion or contaminants that lessen its capability to support vegetation.
Long-term stockpiles shall be seeded with the legumes
specified in the ground cover mixes used for
reforestation (7.4.d.1.G.1. of this rule).
7.4.b.1.E. Soil Placement and Grading.
7.4.b.1.E.1. The Director shall require the permittee
to place minesoil loosely and in a non-compacted manner
while meeting static safety factor requirements.
Minesoil shall be graded only when necessary to
maintain stability or on slopes greater than 20% unless
otherwise approved by the Director. Grading shall be
minimized to reduce compaction. When grading is
approved by the Director, only light grading equipment
may be used to grade the tops off the piles, roughly
leveling the area with no more than one or two passes.
Tracking in and rubber-tired equipment shall not be
used. Non-permanent roads, equipment yards, and other
trafficked areas shall be deep-ripped (24" to 36") to
mitigate compaction and to allow these areas to be
restored to productive commercial forestry. Soil
physical quality shall be inadequate if it inhibits water infiltration or prevents root penetration or if
their physical properties or water-supplying capacities
cause them to restrict root growth of trees common to
the area. Slopes greater than 50% shall be compacted
no more than is necessary to achieve stability and non-
erodability.
7.4.b.1.E.2. The Director shall require the permittee
to leave soil surfaces rough with random depressions
across the entire surface to catch seed and sediment,
conserve soil water, and promote revegetation. Organic
debris such as forest litter, logs, and stumps shall be
left on and in the soil.
7.4.b.1.F. Liming and Fertilizing.
7.4.b.1.F.1. The Director shall require the permittee
to apply lime where the average soil pH is less than
5.5. Lime rates will be used to achieve a uniform soil
pH of 6.0. An alternate maximum or minimum soil pH may
be approved, however, based on the optimum pH for the
forest revegetation species. Soil pH may vary from 4.5
to a maximum of 7.0 from place to place across the
reclaimed area with no more than 10% of the site below pH 5.0 and/or no more than 10% of the site above pH
6.5. Low and high pH levels may be approved only when
tree species tolerant of the pH range have been
approved for planting.
7.4.b.1.F.2. The Director shall require the permittee
to fertilize based on the needs of trees and ground
cover vegetation. The permittee shall apply up to 300
pounds/acre of diammonium phosphate (18-46-0) and up to
100 pounds/acre potassium sulfate (0-0-52) with the
ground cover seeding. Other fertilizer materials and
rates may be used only if the Director finds that the
substitutions are appropriate based on soil tests
performed by state certified laboratories.
7.4.b.1.G. Ground Cover Vegetation.
7.4.b.1.G.1. The Director shall require the permittee
to establish a temporary erosion control vegetative
cover as contemporaneously as practicable with
backfilling and grading until a permanent tree cover
can be established. This cover shall consist of a
combination of native and domesticated non-competitive
and non-invasive cool and warm season grasses and other herbaceous vine or shrub species including legume
species and ericaceous shrubs. All species shall be
slow growing, tolerant of low pH, and compatible with
tree establishment and growth. The ground cover
vegetation shall be capable of stabilizing the soil
from excessive erosion, but it should be minimized to
control tree-damaging rodent population, and allow the
establishment and unrestricted growth of native
herbaceous plants and trees. Seeding rates and
composition must be in the planting plan. The
following ground cover mix and seeding rates
(pounds/acre) shall be used: winter wheat (15
lbs/acre, fall seeding), foxtail millet (5 lbs/acre,
summer seeding), redtop (2 lbs/acre), perennial
ryegrass (2 lbs/acre), orchardgrass (5 lbs/acre),
weeping lovegrass (2 lbs/acre) kobe lespedeza (5
lbs/acre), birdsfoot trefoil (10 lbs/acre), and white
clover (3 lbs/acre). Kentucky-31 fescue, serecia
lespedeza, all vetches, clovers (except ladino and
white clover) and other aggressive or invasive species
shall not be used. South- and west-facing slopes with a soil pH of 6.0 or greater, the four grasses in the
mixture shall be replaced with 20 lbs/acre of
warm-season grasses consisting of the following
species: Niagara big bluestem (5 lbs/acre), Camper
little bluestem (2 lbs/acre), Indian grass (2
lbs/acre), and Shelter switch grass (1 lb/acre), or
other varieties of these species approved by the
Director. Also, a selection of at least 3 native shrub
species native of the area shall be included in the
ground cover mix. Provided, that on slopes less than
20%, the Director may approve lesser or no vegetative
cover when tree growth and productivity will be
enhanced and excessive sedimentation will not result.
7.4.b.1.G.2. All mixes shall be compatible with the
plant and animal species of the region and the
commercial forestry use. The Director shall require
the use of a variety of site-specific ground cover
treatments so that different ground cover treatments
are used on different parts of the reclamation area to
add biodiversity and landscape mosaic to the overall
plan.
7.4.b.1.G.3. The permittee may regrade and reseed only
those rills and gullies that are unstable.
7.4.b.1.H. Tree Species and Compositions.
7.4.b.1.H.1. Commercial tree and nurse tree species
selection shall be based on site-specific
characteristics and long-term goals outlined in the
forest management plan and approved by a registered
professional forester. For commercial forestry, the
Director shall assure that all areas suitable for
hardwoods are planted with native hardwoods at a rate
of 500 seedlings per acre in continuous mixtures across
the permitted area with at least six (6) species from
the following list: white and red oaks, other native
oaks, white ash, yellow-poplar, black walnut, sugar
maple, black cherry, or native hickories. For
forestry, the Director shall assure that all areas
suitable for hardwoods are planted with native
hardwoods at a rate of 450 seedlings per acre in
continuous mixtures across the permitted area with at
least three (3) or four (4) species from the following
list: white and red oaks, other native oaks, white ash, yellow-poplar, black walnut, sugar maple, black
cherry, or native hickories.
7.4.b.1.H.2. For commercial forestry, each of the
species shall be not less than 10% of the total planted
composition and at least 75% of the total planted woody
plant composition shall be from the list of species in
part 7.4.d.1.H.1. Species shall be selected based on
their compatibility and expected site-specific long-
term dynamics. For forestry, if only three species
from the above list are planted, then each of the
species shall be not less than 20% of the total planted
composition. If four species from the list in part
7.4.d.1.H.1. are planted, then each of the species
shall be not less than 15% of the total planted
composition. Species shall be selected based on their
compatibility and expected site-specific long-term
dynamics.
7.4.b.1.H.3. Between 5% and 10% of the required number
of woody plants shall be planted in a continuous mix of
three or more nurse tree and shrub species that improve
soil quality and habitat for wildlife. They shall consist of black alder, black locust, bristley locust,
redbud, or bi-color lespedeza or other non-invasive,
native nurse tree or shrub species, approved by the
Director. One to five acres within each 100 acres of
the permit area shall be left unplanted with trees, but
left with ponds, wetlands or ground cover vegetation
only. These areas may be continuous or divided into 2-
4 separate parcels, each at least 0.25 acres large.
7.4.b.1.H.4. On areas unsuitable for hardwoods, the
Director may authorize the following conifers:
Virginia pine, red pine, white pine, pitch pine, or
pitch x loblolly hybrid pine. Areas unsuitable for
hardwoods shall be limited to southwest-facing slopes
greater than 10% or areas where the soil pH is less
than 5.5. These conifers shall be planted as single-
species stands less than 10 acres in size at the same
rate as the hardwood requirements in 7.4.b.1.H.1 of
this rule. The Director shall assure that no reclaimed
area of the permit area contains a total of more than
15% conifers.
7.4.b.1.H.5. The Director shall assure that the specific species and selection of trees and shrubs
shall be based on the suitability of the planting site
for each species' site requirements based on soil type,
degree of compaction, ground cover, competition,
topographic position, and aspect.
7.4.b.1.H.6. For commercial forestry only, in addition
to the trees and shrubs required in the sections above,
2-0 white pine seedlings shall be planted across all
sites at a rate of 5 to 10 trees per acre. These trees
will be used for the productivity check required for
Phase III bond release.
7.4.b.1.I. Standards of Success.
7.4.b.1.I.1. The Director shall assure the ability of
the commercial forestry and forestry areas to produce a
high-quality commercial forest by confirming, after on-
site soil testing, that the minesoil selection,
placement, and preparation criteria in 7.4.d.1.D.7
through 11 of this rule are met before Phase I bond
release may occur. Before approving Phase I bond
release, a certified soil scientist shall certify, and
the Director shall make a written finding that the minesoil meets these criteria.
7.4.b.1.I.2. The Director shall not authorize Phase II
bond release for commercial forestry before the end of
the fifth tree growing season. The Director may
approve Phase II bond release only if the tree survival
is equal to or greater than 300 commercial trees per
acre (80% of which must be commercial hardwood species
listed in 7.4.b.1.H.1 of this rule) or the rate
specified in the forest management plan, whichever is
greater. For forestry, Phase II bond release may be
granted by the Director at the end of the second
growing season only if the tree survival is equal to or
greater than 300 trees per acre, 60% of which must be
commercial hardwood species listed in part 7.4.d.1.H.1.
of this rule, or the rate specified in the forest
management plan, whichever is greater. Furthermore, for
both commercial forestry and forestry, where there is
potential for excessive erosion on slopes greater than
20%, there shall be 70% ground cover where ground cover
includes tree canopy, shrub and herbaceous cover,
organic litter, and rock cover, and at least 80% of all trees and shrubs used to determine re-vegetation
success must have been in place for at least 60% of the
applicable minimum period of responsibility. Trees and
shrubs counted in determining such success shall be
healthy and shall have been in place for not less than
two growing seasons with no evidence of die back.
7.4.b.1.I.3. The Director may approve Phase III bond
release for commercial forestry and forestry only if
all criteria for Phase II bond release in 7.4.b.1.I.2
of this rule are still being met at the time Phase III
bond release is considered. For forestry, Phase III
bond release may not be authorized until at least five
growing seasons have passed since the trees were
planted. Additionally, for commercial forestry, Phase
III bond release may not be authorized unless
commercial forest productivity has been achieved by the
end of the twelfth growing season or, if such
productivity has not been achieved, if a commercial
forestry mitigation plan is submitted to the Director,
approved and completed. Commercial forest productivity
is achieved only when annual height increments of the white pine indicator species, based on the average of
four or more consecutive annual height increments, is
equal to or greater than 1.5 feet. The Director shall
measure the average four-year growth increment of all
trees along two perpendicular transects across the site
that will achieve a tree sample size of no less than
two trees per acre.
7.4.b.1.I.4. A commercial forestry mitigation plan
shall require a permittee who has not achieved
commercial forestry productivity requirements by the
end of the twelfth growing season to either pay to the
Special Reclamation Fund an amount equal to twice the
remaining bond amount or to perform an equivalent
amount of in-kind mitigation. The Director shall use
any money collected under this plan to establish
forests on bond forfeiture sites. In-kind mitigation
requires establishing forests on AML or bond forfeiture
sites. After completion of the mitigation plan, Phase
III bond release may be approved if the Director finds
that the failure to achieve productivity did not result
from a failure to follow the provisions of this rule and did not result in environmental damage.
7.4.b.1.I.5. The Director may release all or part of
the bond for the commercial forestry and forestry
variance or increment thereof in accordance with this
subsection and 38-2-12.2.d. and 12.2.e. of this rule.
The Director may release the variance portion if all
appropriate standards have been met without regard to
the bonding scheme selected for the permit.
7.4.b.1.J. Front Faces of Valley Fills.
7.4.b.1.J.1. Front faces of valley fills shall be
exempt from the requirements of this rule except that:
7.4.b.1.J.1.(a) They shall be graded and compacted no
more than is necessary to achieve stability and non-
erodability;
7.4.b.1.J.1.(b) No unweathered shales may be present in
the upper four feet of surface material;
7.4.b.1.J.1.(c) The upper four feet of surface material
shall be composed of soil and the materials described
in 7.4.b.1.D. of this rule, when available, unless the
Director determines other material is necessary to
achieve stability;
7.4.b.1.J.1.(d) The groundcover mixes described in
subparagraph 7.4.d.1.G. shall be used unless the
Director requires a different mixture;
7.4.b.1.J.1.(e) Kentucky 31 fescue, serecia lespedeza,
vetches, clovers (except ladino and white clover) or
other invasive species may not be used; and
7.4.b.1.J.2. Although not required by this rule,
native, non-invasive trees may be planted on the faces
of fills.
7.4.b.1.K. Long-term Monitoring and Adaptive
Management. The Director shall under-take, with the
assistance of the Division of Forestry or other
forestry research units, a performance assessment of
all Commercial Forestland permits within 10 years of
Phase III bond release. Species composition,
biodiversity, productivity, carbon capture, wildlife
habitat, stream and wetland biota, and hydrologic
function will be assessed. Results will be reported,
analyzed, interpreted and used as part of an adaptive
management program to improve the regulations and
guidelines for Commercial Forestland.
7.5.The Homestead land use meets the requirements for a
variance from the AOC requirements of the Act (W.Va.
Code 22-3-13(c)). An appropriately planned Homestead
will promote sustainable settlement patterns that
protect the environment and support the region's
economic development.
7.5.a. Operations receiving a variance from AOC for
this use shall establish homesteading on at least
one-half (½) of the permit area. The remainder of the
permit area shall support an alternate AOC variance
use.
7.5.b. The following terms are applicable only to this
subsection of this rule.
7.5.b.1. Building Pad means an accessible, designated,
and properly drained area where the soil and/or
mine-spoil has been specially placed and compacted to
minimize post-mining surface settlement. After the
building pad is completed, a registered professional
engineer shall certify that the building pad was
constructed as designed. This certification shall
accompany the deed of conveyance.
7.5.b.2. Civic Parcel means a parcel designated in the
Land Plan for public use.
7.5.b.3. Commercial Parcel means a parcel retained by
the Landowner of record and incorporated within the
Homestead Area on which the landowner or its designee
may develop commercial uses. The size and location of
commercial parcels shall comply with the requirements
of this regulation.
7.5.b.4. Community Association means an association of
all the homesteaders. This association shall receive
title to the civic parcels, conservation easements and
nurseries at the time of final bond release.
7.5.b.5. Conservation Easement means an area, typically
a strip no less than 200 feet wide, designated in the
land plan for the purpose of establishing a natural
habitat for the development and migration of native
species of fauna and flora. These easements shall
extend through the mined areas of the land, starting
and ending in natural, undisturbed land. These areas
shall be permanent easements maintained for
conservation and not commercial purposes.
7.5.b.6. Entity Administering The Civic Parcels means
the Community Association or its designee shall
administer the civic parcels.
7.5.b.7. Escrow Agent means the Attorney General of the
State of West Virginia shall be the Escrow Agent.
7.5.b.8. Homesteader means a citizen of the State that
fulfills the requirements of this regulation and who is
selected by lottery to reside on a designated homestead
parcel.
7.5.b.9. Homestead Area means the entire area
designated for homestead use, including roads.
7.5.b.10. Homestead Infrastructure means the facilities
necessary to sustain residential use, including roads,
electricity, telephone, water and sewage or septic
systems.
7.5.b.11.Homestead Parcel means an individual segment
of a homestead area designated as either a rural or
village parcel. The permittee shall assure that each
parcel has been surveyed by a licensed land surveyor
before Phase I bond release.
7.5.b.12.Homestead Plan means all the required documentation, engineered drawings, authorizations,
agreements and schedules which are to be submitted and
approved by the Director.
7.5.b.13. Homestead Selection Lottery means a lottery
sanctioned by the State, operated under rules
established and administered by the Director or the
Director's designee as soon as practicable after Phase
I bond release.
7.5.b.14. Landowner Of Record means the surface estate
owner at the time the mining permit is submitted to the
Director. More than one Landowner of Record may be
involved in a Homestead Plan. The Landowner of Record
shall transfer the title to the surface estate of the
Homestead Area to the Escrow Agent prior to the
beginning of mining. The cost of transfer shall be
paid by the Landowner of Record.
7.5.b.15. Land Plan means the depiction, with
supporting documentation, including surveys and
narratives, of the homestead parcels, building pads,
roads, easements, civic parcels, commercial parcels,
and other features of the Homestead Area.
7.5.b.16. Machine Passable Grade means the maximum
grade that can be safely accommodated by commonly used,
self-propelled, rubber-tired farming equipment.
7.5.b.17. Rural Parcels means homesteading parcels
planned to promote rural uses such as farming, orchard
growing, timber management, viticulture, and Morret
gardening. The rural parcels shall be an appropriate
size for the designated use and may be up to 40 acres.
Rural homesteaders may receive title only to that
portion of the land that they have improved over the
five-year period.
7.5.b.18. Service Drop means the overhead service
conductors from the last pole or other aerial support
to and including the splices, if any, connecting to the
service-entrance conductors at the building or other
structure.
7.5.b.19. Service-Entrance Conductors, Overhead System
means the service conductors between the terminals of
the service equipment and a point usually outside the
building, clear of building walls, where joined by tap
or splice to the service drop.
7.5.b.20. Service-Entrance Conductors, Underground
System means the service conductors between the
terminals of the service equipment and the point of
connection to the service lateral.
7.5.b.21.Service Lateral means the underground service
conductors between the street main, including any
risers at a pole or other structure or from
transformers, and the first point of connection to the
service-entrance conductors in a terminal box or meter
or other enclosure with adequate space, inside or
outside the building wall. Where there is no terminal
box, meter, or other enclosure with adequate space, the
point of connection shall be considered to be the point
of entrance of the service conductors into the
building.
7.5.b.22. Soil Plan means the maps and descriptions of
premining and postmining soil included in the Homestead
Plan.
7.5.b.23. Village Parcels means homesteading parcels
that provide a higher density of residential population
than rural parcels.
7.5.c. Eligibility Requirements And Responsibilities
For Homesteaders.
7.5.c.1. Homesteader shall meet the following
eligibility requirements:
7.5.c.1.A. Be a resident of the State of West Virginia
and be at least 18 years old;
7.5.c.1.B. Apply for a homestead as required by this
rule;
7.5.c.1.C. Abide by the rules of the Homestead
Selection Lottery;
7.5.c.1.D. Reside on the subject parcel within 12
months after the property is certified as ready for
use. Provided that subject to the approval of the
Escrow Agent, occupancy may be delayed up to 6
additional months for good cause shown.
7.5.d. Rules For The Lottery.
7.5.d.1. The rules for the Lottery are as follows:
7.5.d.1.A. Each household may receive no more than one
homestead.
7.5.d.1.B. Homestead parcels shall be distributed by
anonymous lottery.
7.5.d.1.C. For any given Homestead, the lottery shall
first be opened only to West Virginians living within
three (3) miles of the permitted area within five years
of the date of the filing of the permit application.
Provided, however, that if parcels remain after an
initial lottery, subsequent lotteries shall be held in
the following order. The first subsequent lottery
shall be open to any resident of a county (or counties,
if more than one) in which the mine is located.
Further, lotteries, if necessary, shall be open to any
resident of West Virginia, and shall be held at six (6)
month intervals.
7.5.d.1.D. The lottery shall be held as soon as
practicable after Phase I bond release is approved.
Adequate notice shall be provided at least six (6)
months in advance of the lottery.
7.5.d.1.E. The lottery shall be fair, impartial, and
open to the public.
7.5.d.1.F. A lottery participant who receives a parcel
may decline a parcel, but may not sell the right to
homestead on the parcel.
7.5.d.1.G. The right to participate in the lottery is
not assignable or saleable.
7.5.d.1.H. Each lottery participant shall, before the
lottery, apply for either a rural or a village parcel.
7.5.e. Homestead Plan Development.
7.5.e.1. The Director may authorize Homesteading as a
post-mining use only if the following conditions have
been satisfied.
7.5.e.1.A. The Homestead Plan and any subsequent
modifications shall be prepared under the direction of
and certified by a professional engineer, a soil
scientist, and a design professional that is either a
licensed architect, landscape architect, or AICP
certified land planner.
7.5.e.1.B. The Homestead Plan shall identify each
member of a specialty group that contributed to the
plan. The Plan shall be sufficiently detailed to
ensure success in achieving the designated use of each
homestead panel and to ensure sound future management
of the homestead.
7.5.e.1.C. Homestead plan may be used alone or in conjunction with any other alternate land use plan.
The Homesteading area, minus commercial parcels, shall
occupy at least 50% of the permitted area. In the
event that the Homestead use is used in conjunction
with another land use, the Landowner of Record shall
provide for the Homestead use at least as much land on
the mining bench as it retains for alternate land use.
7.5.e.1.D. The Permittee shall submit plans prepared at
a preferred scale of at least 1 inch = 200 feet, which
include the following:
7.5.e.1.D.1. A Land Plan showing the homestead
boundaries, homestead parcels, building pads, roads,
easements, civic parcels, and commercial parcels, as
applicable.
7.5.e.1.D.2. A Site Plan and description of the
following:
7.5.e.1.D.2.(a) waste water and sewage systems,
7.5.e.1.D.2.(b) potable water supply,
7.5.e.1.D.2.(c) non-potable water supply (if
applicable),
7.5.e.1.D.2.(d) electrical service, and
7.5.e.1.D.2.(e) telephone service.
7.5.e.1.D.3. A grading plan showing contours at an
interval appropriate for the map scale and slopes, and
including surface drainage and storm water provisions.
The Director shall require maps at specific scales and
contour intervals to satisfy the designated uses of the
homestead parcels and the land plan.
7.5.e.1.D.4. A map showing all off-bench fill areas and
the outcrop of the lowest coal bed.
7.5.e.1.D.5. A Soil Plan showing soil and weathered
spoil storage areas. The plan shall describe the
methods to be used to distribute, protect, and enhance
the stored material upon final regrading of the
disturbed surfaces. The plan shall identify the
proposed depths of soil and subsoil for each specific
use within the Homestead Area. These specific uses may
include, but shall not be limited to, the following:
7.5.e.1.D.5.(a) Haul roads
7.5.e.1.D.5.(b) Conservation Easements
7.5.e.1.D.5.(c) Building Pads
7.5.e.1.D.5.(d) Garden Plots
7.5.e.1.D.5.(e) Waste Water and Sewage Disposal
Facilities
7.5.e.1.D.5.(f) Storm Drainage Facilities
7.5.e.1.D.5.(g) Wetland Facilities
7.5.e.1.D.5.(h) Utility Easements
7.5.e.1.D.5.(i) Civic/Public Facilities
7.5.e.1.D.5.(j) Commercial Areas
7.5.e.1.D.6. Soil maps.
7.5.f. Financial Commitments.
7.5.f.1. A contract between the Permittee and the
Director, binding the Permittee to complete the
homestead use as soon practicable but no later than two
years after the completion of mining, shall be
required.
7.5.f.2. The contract between the Permittee and the
Director shall, at a minimum, require the Permittee to
follow the homesteading reclamation plan.
7.5.f.3. To receive approval for a homestead use, the
Permittee shall demonstrate that it has the financial
capability to achieve the use and carry out the
reclamation plan. The Permittee shall submit signed statements containing financial information and data
sufficient to demonstrate that the Permittee has the
financial capability to achieve the homesteading use.
7.5.f.4. Before approving the Permit, the Director
shall find, in writing, that the Permittee has the
financial capability to achieve the use.
7.5.g. Required Elements For All Homestead Plans.
7.5.g.1. Boundary of the homestead area:
7.5.g.1.A. The Homestead Area shall be defined by a
metes and bounds description prepared and certified by
a Professional Engineer or Licensed Land Surveyor
registered with the State of West Virginia.
7.5.g.1.B. Non-mined areas may be included in the
Homestead Area.
7.5.g.1.C. In the event that any portion of the land
transferred to the Escrow Agent is not mined, that land
may revert to the Landowner of Record.
7.5.g.2. General Requirements of all Parcels:
7.5.g.2.A. Each individual parcel shall be delineated
by metes and bounds description prepared by a
Professional Engineer or Licensed Land Surveyor registered with the State of West Virginia.
7.5.g.2.B. Parcels shall support their designated land
uses.
7.5.g.2.C. Parcels shall be configured and arranged to
minimize adverse environmental impacts.
7.5.g.2.D. The Permittee shall provide adequate road
frontage for access to each Homestead, Public Nursery,
Civic and Commercial Parcel.
7.5.g.2.E. Houses and appurtenant facilities shall be
no closer than 50 feet from the edge of a designated
Conservation Easement.
7.5.g.3. Homestead parcels:
7.5.g.3.A. Homestead Parcels shall be designated as
either rural or village parcels. All parcels shall
contain machine passable land appropriate to the
designated use.
7.5.g.3.B. Each rural homestead parcel shall be
provided with a garden area of at least 5,000 square
feet. Each village homestead parcel shall be provided
with a garden area of at least 600 square feet. The
garden areas shall be constructed in compliance with the soil requirements set forth in subdivision 7.5.j.
of this rule.
7.5.g.3.C. Each rural and village homestead parcel
shall contain a building pad of a minimum of 2,500
square feet for a dwelling. Each rural homestead
parcel shall also contain a building pad of a minimum
of 2,500 square feet for an outbuilding.
7.5.g.4. Civic Parcels:
7.5.g.4.A. The Homestead Plan shall delineate one or
more appropriate sites within the total proposed
Homestead area for Civic Parcels. These uses may
include, but are not limited to, the following: park
land, playing fields, schools, post office, and
community administrative facilities. This area shall
occupy at least 10% of the post-mining permit area.
7.5.g.4.B. The Civic Parcels may be one contiguous
parcel or appropriately sized non-contiguous parcels.
7.5.g.4.C. The Civic Parcels shall be deeded at no
charge to the duly recognized Community Association.
7.5.g.4.D. The Civic Parcels shall be provided with an
access road and utilities that are consistent with the proposed civic land use.
7.5.g.5. Commercial Parcels:
7.5.g.5.A. The Landowner of Record may elect to retain
up to 15% of the land in the proposed Homestead Area
for the purpose of commercial development; provided
that the Landowner of Record may retain no more than
50% of the permitted area.
7.5.g.5.B. The retained commercial area may be
comprised of one or more parcels and shall be indicated
on the Land Plan.
7.5.g.5.C. In the area for the Commercial Parcel the
mine-spoil shall be placed, compacted, and regraded in
a manner consistent with the proposed commercial land
use.
7.5.g.6. Approval:
7.5.g.6.A. Before approving a homesteading reclamation
plan, the Director shall assure that Homestead Plan is
reviewed and approved by either a licensed architect,
landscape architect, or AICP certified land planner
employed by or under contract to the Director. In
addition, the Director shall assure that the plans for Rural Parcels are reviewed and approved by an
agronomist employed by or under contract with the
Director. The applicants shall pay for any review
under this subsection.
7.5.h. Construction And Conveyance Of Homestead
Parcels. All construction projects not performed by
the homesteaders on Homestead Areas shall be performed
by the Permittee, using a West Virginia licensed
contractor.
7.5.h.1. Stabilization Of The Homestead Area:
7.5.h.1.A. The Homestead Plan shall describe the
methods that will be used during the placement of mine
spoil to minimize mine spoil consolidation and its
associated ground settlement, where such settlement
will adversely affect the use of the homestead.
Conditions relating to the placement of structures on
the mine-spoil shall be clearly identified in the Plan.
7.5.h.1.B. The Plan must delineate the areas on each
parcel where the mine-spoil will be placed in a manner
to minimize post-mining land surface settlement on
Building Pads, roads and other appropriate areas.
7.5.h.1.C. The placement methodology shall be specified
by a qualified engineer. The Plan shall indicate the
type and style of structure appropriate for each
building pad. The Plan shall include the requirement
that a professional engineer will monitor the
construction of the building pads to certify compliance
with the specifications of the plan.
7.5.h.2. Construction Of The Building Pad:
7.5.h.2.A. Building Pads shall be designed by a
registered professional engineer.
7.5.h.2.B. The registered professional engineer shall
supervise the placement of the uppermost 20 feet of
spoil for Building Pads to minimize consolidation.
7.5.h.2.C. The engineer shall certify the integrity of
the Building Pad and that the Building Pads will not
settle more than 2 inch after the expected structure is
in place.
7.5.h.2.D. Building Pads shall be designed to
accommodate the type of building expected to be placed
on the pad.
7.5.h.2.E. Building Pads shall not be placed on valley fills.
7.5.h.3. Conveyance Of Homestead Parcels:
7.5.h.3.A. Estimated short and long-term costs to
Homesteaders shall be designated in the Homestead Plan
and presented to Homesteaders immediately after the
Lottery on a parcel specific basis.
7.5.h.3.B. The rights to the surface estate shall be
deeded to each Homesteader free and clear of all liens
and encumbrances as soon after bond release as the
Escrow Agent determines that the property is ready for
use. The deeds shall not retain right of entry onto
the homestead parcels to conduct future surface mining
activities.
7.5.h.3.C. Consistent with State and Federal law, the
transfer of the surface to the Escrow Agent may be for
surface rights only and need not include any minerals,
oil or gas and shall be subject to usual and customary
mining or extraction rights.
7.5.h.3.D. Before receiving the Homestead Parcel, each
homesteader shall:
7.5.h.3.D.1. Install and reside in a dwelling whose structure complies with the Homestead Plan community
association rules, and all applicable local, county
and state laws;
7.5.h.3.D.2. Reside on the parcel for at least
forty-five weeks each year for five (5) consecutive
years prior to receipt of title to the land;
7.5.h.3.D.3. Use and improve the parcel by completing a
dwelling that complies with this rule, installing an
approved septic system and maintaining vegetative cover
on all parts of the homestead parcel and plant trees
from the Public Nursery in accordance with subdivision
7.5.l.4. of this rule.
7.5.h.3.E. In the event extreme hardship causes a
homesteader to be forced to sell his property before
the five-year occupancy period has expired, the Escrow
Agent shall convey title early. The Escrow Agent's
determination of extreme hardship shall be reasonable
by the Circuit Court of County in which the homestead
parcel is located.
7.5.i. Required Infrastructure.
7.5.i.1. Roads:
7.5.i.1.A. The Land Plan shall designate an all-weather
road connecting the Homestead Area to a public road or
highway. The road shall meet State Department of
Highways' standards, and shall be certified as safe for
passenger car traffic by registered professional
engineer.
7.5.i.1.B. The Land Plan shall incorporate adequate
road frontage to all parcels. Such roads shall be
designated in the plan and referred to as "main roads."
Main roads shall meet State Department of Highways
standards, and shall be certified as built as safe for
passenger car traffic by registered civil engineer.
Before the Director may approve a surface mining
application for this use, the County or State road
authority shall conditionally agree to accept
responsibility for maintaining the all-weather and main
roads after mining is complete.
7.5.i.1.C. The Land Plan shall provide an entrance from
the main road to each parcel, complete with culvert as
needed. The Homesteader shall be responsible for
extending the driveway from the entrance to the building pad.
7.5.i.2. Waste Water And Sewage:
7.5.i.2.A. The Homestead Plan shall incorporate a waste
water and sewage disposal plan conditionally approved
by the Director, the West Virginia Bureau of Public
Health or the public health authority of the county.
The waste water/sewage disposal system shall be
approved by the appropriate entities before Phase II
bond release shall be authorized. No such approval may
be granted unless the system meets local health
department standards.
7.5.i.2.B. A variety of waste water and sewage disposal
systems, including individual septic systems, may be
proposed. Alternative/innovative systems shall be
consistent with all State and federal regulations. The
reclamation, topsoiling, grading, and revegetation plan
of each parcel shall be designed to accommodate the
proposed waste water/sewage system.
7.5.i.2.C. The Homestead Plan shall provide a
functional waste water and sewage system for each
Civic, Commercial or Homestead Parcel. The system shall describe an approved hookup/cleanout point no
more than 50 feet from such homestead and civic
Building Pads.
7.5.i.2.D. Each Homesteader shall be responsible for
all costs incurred to connect structures on the
Homestead parcel to the waste water and sewage system.
Additionally, if necessary, each homesteader shall be
responsible for all costs incurred to install an
individual septic system.
7.5.i.2.E. The entity administering the Civic Parcel
shall be responsible for all costs incurred to connect
structures on the Civic Parcel to the waste water and
sewage system.
7.5.i.2.F. The Homestead Plan shall describe the
maintenance and upkeep demands of any proposed sewage
disposal system, and shall designate the entity
responsible for such maintenance. Phase III bond
release may not be approved until the designated entity
has accepted responsibility for such maintenance.
7.5.i.3. Water Supply:
7.5.i.3.A. The Homestead Plan shall include a potable water supply source or sources adequate for each
Homestead Parcel. The supply of water shall be
provided by one of the following methods in the
following order of priority: a) water piped from an
existing public water supply; b) from wells; or c) from
reservoirs with catchment basins adequate to supply the
homestead area. Before authorizing any system of
potable water supply that is not piped from an existing
water supply, the Director shall find, in writing, that
the higher order methods of delivery of potable water
are not feasible. The Director may rely on the sewers
if an appropriate Public Health Authority.
7.5.i.3.B. The Permittee shall establish and pay for
the potable water supply system.
7.5.i.3.C. The water shall be delivered at a constant
rate and at water industry accepted pressure and flow.
7.5.i.3.D. The Homestead Plan shall describe the future
maintenance of the water supply system. If the water
system is public, the plan shall designate the entity
responsible for its upkeep. Homesteaders may be
required to pay a fair market price for the water. Homesteaders shall not be charged for water from their
own individual well, although Homesteaders shall be
responsible for maintenance of their own wells.
7.5.i.3.E. Individual supply systems shall, at a
minimum, meet all applicable health standards, comply
with all state and federal laws, and be approved by the
appropriate public health authority. Appropriate
wellhead protection or watershed protection practices
shall be incorporated into the Homestead Plan, and
shall protect water from potential vulnerability from
future land use.
7.5.i.3.F. The source or sources of potable water must
be identified within the Homesteading Plan, along with
a demonstration of the adequacy of quantity and
quality. Upon completion of the reclamation plan, the
Permittee shall install and demonstrate the quality and
adequacy of the supply. If the originally proposed
water supply system proves to be inadequate or
unsuitable, the Permittee shall immediately make
application with the Director for approval of alternate
supplies or adequate improvements to the water supply system. The resulting improvements and/or alternate
supplies shall comply with the requirements in this
rule and shall be subject to the approval of the
appropriate public health authority. Phase I bond
release may not be approved until the Director finds
that the installed water supply complies with this rule
and applicable State and federal law.
7.5.i.3.G. The Homestead Plan shall describe a water
supply plan that is adequate to meet the needs of the
Homestead Area. The water supply plan shall address
the anticipated future land use of the Homestead Area,
and must be reviewed and approved by the Director and
the appropriate public health authorities.
7.5.i.3.H. The potable water supply sources shall meet
the Federal Primary Drinking Water Maximum Contaminant
Level standards. (40 CFR 141, Subpart B).
Verification of such quality shall be provided to the
appropriate public health authority.
7.5.i.3.I. The supply source means the contiguous water
body or contiguous aquifer from which supplies are
drawn. If multiple homestead unit supplies are withdrawn from the same source, determination of water
quality of the source shall be made at points that are
representative of the water that will be withdrawn from
the source.
7.5.i.3.J. The potable water supply shall provide for a
minimum quantity of 12,500 gallons per month per
homestead unit. The supply may incorporate one or a
combination of sources and storage facilities
demonstrated to provide an adequate supply for each
homestead parcel.
7.5.i.3.K. If a ground water source is to be used, the
plan and the confirmation of the installed ground water
supply system shall be conducted under the direction of
a qualified ground water professional. The locations
of drilled wells shall be consistent with appropriate
public health requirements.
7.5.i.3.L. The water supply shall be developed (or
extended as applicable) free of charge to the
homesteader to a point within 50 feet of the designated
residence and civic parcel construction pads for each
homestead unit.
7.5.i.3.M. After initial establishment of compliant
water quality and quantity, responsibility for
maintenance of the water supply shall revert to the
homesteader or, in the event that the supply is
community- or publicly-controlled, to the appropriate
and capable public authority.
7.5.i.3.N. When the potable water supply is
insufficient to meet the needs of the proposed use for
rural homestead parcels, the Homestead Plan shall
include nonpotable water supplies for uses that do not
require potable water. Before approving Phase I bond
release, the Director shall find that the non-potable
water supply is sufficient in both quality and quantity
for such uses, including agricultural uses. The plan
for the system shall indicate the provisions that will
be taken to assure that the potable water supply shall
not be compromised. The approval of nonpotable water
supplies distribution and handling system shall be
consistent with State and federal law.
7.5.i.3.O. Each Homesteader shall be responsible for
costs incurred to connect dwellings to water facilities.
7.5.i.3.P. The entity administering the civic parcel
shall be responsible for costs incurred to connect
structures on the civic parcel to water facilities.
7.5.i.3.Q. If a reservoir is used, a registered
professional engineer shall certify its integrity. The
engineer shall also certify that, taking account of
inflow, seepage and evaporation, the reservoir will
provide the amount of water and water pressure required
by the Homestead use.
7.5.i.4. Electrical Utilities:
7.5.i.4.A. The Homestead Plan shall provide access to
electrical power for all Homestead Parcels and for all
Civic Parcels requiring electric power. The quantity
of electricity supplied shall be sufficient to support
the proposed use. Phase II bond release may not be
approved until all the necessary facilities have been
rendered operational and extended to a point where the
service drop for the Homestead or Civic Parcel can be
accomplished in no more than one span. If a service
lateral is proposed, access to electrical power shall be deemed to have been satisfactorily provided when the
service lateral is no more than 50 feet in length.
Such electrical power facilities shall be designated in
the plan and referred to as "main electrical power
facilities."
7.5.i.4.B. All line work shall conform to the practices
of the electric power utility servicing the area. The
installed main utilities and associated equipment shall
be conveyed to the electric power utility servicing the
area.
7.5.i.4.C. Each Homesteader shall be responsible for
all costs incurred to install a service drop or service
lateral the building pads.
7.5.i.4.D. The entity administering the Civic Parcel
shall be responsible for all costs incurred to install
a service drop or service lateral to structures on the
Civic Parcel.
7.5.i.4.E. Each Homesteader shall be responsible for
cost of electrical service.
7.5.i.5. Communication Services:
7.5.i.5.A. The Permittee shall provide access to telephone service for all Homestead Parcels and for all
Civic Parcels requiring telephone service. Phase II
bond release may not be approved until access to
telephone service has been rendered operational and
extended to a point within 50 feet of the Parcel's
building pads. Such telephone or equivalent utilities
shall be designated in the plan and referred to as
"main telephone facilities."
7.5.i.5.B. All service line work shall conform to the
practices of the telephone service provider of the
area. All line work and associated equipment shall be
conveyed to the local telephone service provider.
7.5.i.5.C. Each Homesteader shall be responsible for
all costs incurred to extend and connect main telephone
facilities to the building pads.
7.5.i.5.D. The entity administering the Civic Parcel
shall be responsible for all costs incurred to extend
and connect main telephone facilities to the Civic
Parcels.
7.5.i.5.E. Each Homesteader shall be responsible for
the cost of telephone service.
7.5.i.6. Solid Waste:
7.5.i.6.A. The Homestead Plan shall contain a plan for
the off-site disposal of solid waste that is acceptable
to the Director and the appropriate public health
authority.
7.5.i.7. Surface Drainage And Storm Water:
7.5.i.7.A. The Homestead Plan shall contain a detailed
surface drainage pattern and storm water runoff control
plan. This plan shall be certified by a registered
professional engineer.
7.5.i.7.B. The surface drainage pattern and storm water
plan shall be consistent with a surface drainage
pattern that would be found on natural topography
similar to the post-mining topography proposed in the
Homestead Plan. The beds of the surface and storm
water drainways shall contain material that is as
natural as practicable.
7.5.i.8. Reforested Conservation Easements:
7.5.i.8.A. The Homestead Plan shall identify areas
within the Homestead Area reserved for reforested
Conservation Easements. These areas shall be reforested by the Permittee at no cost to Homesteaders.
7.5.i.8.B. In the event that an isolated forest patch
exists as a result of mining activities, the
Conservation Easement shall serve as a corridor to
establish a wind break and a forested connection with
the isolated forest patch and to facilitate the
adequate movement of fauna out of and into the isolated
forest patch.
7.5.i.8.C. Conservation Easements may serve the purpose
of a storm water management system. In such case, the
technical specifications applicable to the design and
construction of the storm water channels and their
associated structures shall be satisfied.
7.5.i.8.D. Conservation Easement shall compromise at
least 10% of the Homestead Area, including the
Commercial Parcels.
7.5.i.8.E. The Director shall assure that all areas
suitable for hardwoods in the Conservation Easement are
planted with native hardwoods at a rate of 500 seedings
per acre in continuous mixtures across the conservation
easement with at least six (6) species from the following list: white and red oaks, other native oaks,
white ash, yellow-poplar, black walnut, sugar maple,
black cherry, or native hickories. Plants shall be a
minimum of 3/4" in diameter at breast height at
planting.
7.5.i.8.F. Each of the species shall not be less than
10% of the total planted composition and at least 75%
of the total planted woody plant composition shall be
from the above list of species. Species shall be
selected based on their compatibility and expected
site-specific long-term dynamics.
7.5.i.8.G. At least 10% of the required number of woody
plants shall be a planted continuous mix of three or
more nurse tree and shrub species that improve soil
quality and habitat for wildlife. They shall consist
of black alder, black locust, bristley locust, redbud,
or bi-color lespedeza.
7.5.i.8.H. On areas unsuitable for hardwoods, the
Director may authorize the following conifers:
Virginia pine, red pine, white pine, pitch pine, or
pitch x loblolly hybrid pine. Areas unsuitable for hardwoods shall be limited to southwest-facing slopes
of greater than 10% or areas where the soil pH is less
than 5.5. These conifers shall be planted as
single-species stands less than 10 acres in size at the
same rate as the hardwood requirements in this rule.
The Director shall assure that no Conservation Easement
area contains a total of more than 15% conifers.
7.5.i.8.I. The Director shall assure that the specific
species and selection of trees and shrubs shall be
based on the suitability of the planting site for each
species site requirements based on soil type, degree of
compaction, ground cover, competition, topographic
position, and aspect.
7.5.i.8.J. The Director shall assure that the total
planting rate of trees and nurse plants is not less
than 500 stems per acre.
7.5.i.9. Perpetual Easements:
7.5.i.9.A. The Homestead Plan shall describe areas
within the Homestead reserved for perpetual easements
relating to storm water management, protection of
outslopes and steep slopes, protection of water sources, public roads of all kinds, and utilities.
These areas shall be included within Homesteader's
deeded parcels and may have permanent development
restrictions included within the Homesteader's deeds of
conveyance.
7.5.i.9.B. Fill faces shall be placed under perpetual
easements that prohibit activities that may lead to
instability or erodability. Trees may be planted on
the faces of the fills.
7.5.i.10.Wetlands: Each Homestead Plan may describe
areas within the Homestead Area reserved for created
wetlands. These created wetlands may be ponds,
permanent impoundments or wetlands created during
mining. They may be left in place after final bond
release.
7.5.j. Soils, Soil Placement And Grading.
7.5.j.1. General Requirements:
7.5.j.1.A. Phase I bond release shall not be approved
until a soil scientist certifies and the Director finds
that the soil meets the criteria established in this
rule and has been placed in accordance with this rule.
7.5.j.1.B. The Homestead Plan shall include a
topographic map of the permit area, 1:12000 or finer,
showing the location of pre-mining native solids,
weathered slightly-acidic brown sandstone and drainages
which includes site index for common native tree
species. A profile description of each soil mapping
unit that includes, at minimum, soil horizons,
including the O. horizon depths, soil texture,
structure, color, reaction and bedrock type. A
certified professional soil scientist shall conduct a
detailed on-site survey, create the maps, and provide
the written description of the soils and sandstones.
7.5.j.1.C. The Homesteading Plan shall include a
description of the present soils and soil substitutes
to be used as the plant medium, and a description of
the proposed handling, and placement of these
materials. The handling plan shall include procedures
to:
7.5.j.1.C.1. Protect native soil organisms and the
native seed pool;
7.5.j.1.C.2. Include organic debris such as litter, branches, small logs, roots and stumps in the soil;
7.5.j.1.C.3. Inoculate the minesoil with native soil
organisms; and
7.5.j.1.C.4. Increase soil fertility.
7.5.j.1.D. A surface preparation plan which includes a
description of the methods for replacing and grading
the soil and other soil substitutes and their
preparation for homesteading.
7.5.j.2. Landscape Criteria:
7.5.j.2.A. The Director shall assure that the
postmining landscape is rolling, and diverse. The
backfill on the mine bench, shall be configured to
create a postmining topography that includes the
principles of landforming to reflect the premining
irregularities in the land. Postmining landform shall
provide a rolling topography with slopes of between 5%
and 15%. The elevation change between the ridgeline
and the valleys shall be varied. The slope lengths
shall not exceed 500 feet. The minimum thickness of
backfill, including minesoil, placed on the pavement of
the basal seam mined in any particular area shall be 10 feet.
7.5.j.2.B. At least 3 ponds, permanent impoundments or
wetlands totaling at least 3.0 acres shall be created
on each 200 acres of permitted area. They shall be
dispersed throughout the landscape and each water body
shall be no smaller than 0.20 acres. All ponds,
permanent impoundments or wetlands shall comply with
all requirements of this rule, and shall be left in
place after final bond release.
7.5.j.2.C. All ponds and impoundments created during
mining shall be left in place after bond release and
shall comply with all the requirements of this rule.
7.5.j.2.D. The ponds, permanent impoundments, surface
water channels and wetlands on the Permit Area shall be
vegetated on the perimeter with at least six native
herbaceous species typical of the region at a density
of not less than 1 plant per linear foot of edge, and
at least 4 native shrub species at a density of not
less than 1 shrub per 6 linear feet of edge. No
species of herbaceous or shrub species shall be less
than 15% of the total for its life form.
7.5.j.2.E. The landscape criteria in this rule do not
apply to valley fills.
7.5.j.3. Soil:
7.5.j.3.A. Soil is defined as and shall consist of the
O, A, B, C, and Cr horizons.
7.5.j.3.B. The Director shall require the operator to
recover and use all the soil on the mined area, as
shown on the soil maps, except for those areas with a
slope of at least 50%, and other areas from which the
applicant affirmatively demonstrates and the Director
finds that soil cannot reasonably be recovered. The
Director shall assure that all saved soil includes all
of the material from the O and A horizons.
7.5.j.3.C. When the Director determines that available
soil volume on the permit area is not sufficient to
meet the depth requirements, selected overburden
materials may be used as soil substitutes. Soil
substitutes shall consist of weathered, slightly acid,
brown sandstone from within 10 feet of the soil surface
if the Director determines that such material is
available. Material from this layer may be removed with the soil and mixed with the soil in order to meet
the depth requirement.
7.5.j.3.D. If the applicant affirmatively demonstrates
and the Director finds that weathered, slightly acid,
brown sandstone from within 10 feet of the soil surface
cannot reasonably be recovered, weathered, slightly
acid, brown sandstone taken from below 10 feet of the
soil surface from anywhere in the permit area may be
substituted. Materials may be suitable for this
purpose only if their bulk pH in water is between 5.0
and 7.0. Materials with net potential acidity greater
than 5 tons of calcium carbonate equivalence per 1000
tons may not be used.
7.5.j.3.E. Before approving the use of soil
substitutes, the Director shall require the permittee
to demonstrate that the selected overburden material is
suitable for restoring land capability and
productivity. This will be demonstrated by the results
of chemical and physical analyses, including pH, total
soluble salts, phosphorus, potassium, calcium, texture
class, acid-base accounting, and other such analyses as necessary.
7.5.j.3.F. The final surface material used on all parts
of the permit area except roads, building pads, and
valley fill faces shall consist of a minimum of 4 feet
of soil, or a mixture of soil and suitable soil
substitutes. Homesteading soil depth shall contain at
least 33% soil. If the applicant affirmatively
demonstrate and the Director finds, that sufficient
weathered slightly acid brown sandstone cannot
reasonably be recovered from the mined area to satisfy
the mine soil depth requirement, then up to one quarter
of the total volume of the minesoil may consist of
highly-fractured sandstone, as long as it has been
demonstrated that the physical and chemical quality of
this material is suitable.
7.5.j.3.G. If the applicant does not demonstrate that
there is sufficient material available on the permit
area to satisfy the requirements of this rule, then the
Director may not authorize a Homesteading variance.
7.5.j.3.H. The Director may require the operator to
include as part of the minesoil mix organic debris such as forest litter, branches, small logs, roots and
stumps in the soil to help reseed the native
vegetation, inoculate the minesoil with native soil
organisms and increase soil fertility.
7.5.j.3.I. The Director shall require that soil be
removed and reapplied in a manner that minimizes
stockpiling such that seed pools and soil organisms
remain biological viable. No more than 10% of the
available soil, described in the Director's findings,
may be placed in a long-term stockpile, soil
redistribution shall be done within one month of soil
removal. Except for soil in a long-term stockpile,
soil shall be stored for less than one month in piles
less than six feet high and 24 feet wide in a stable
area within the permit area where it will not be
disturbed and will be protected from water or wind
erosion or contaminants that lessen its capability to
support vegetation. Long-term stockpiles shall be
seeded with ground cover mixes used for reforestation.
7.5.j.4. Soil Placement And Grading:
7.5.j.4.A. Except for valley fill faces, building pads, roads, and other areas that must be compacted, the
Director shall require the Permittee to place minesoil
loosely and in a non-compacted manner while meeting
static safety factor requirements. Grading the final
surface shall be minimized to reduce compaction. Once
the material is placed, light grading equipment shall
be used to grade the tops of the piles, roughly
leveling the area with no more than one or two passes.
Tracking in and rubber-tired equipment shall not be
used. Non-permanent roads, equipment yards and other
trafficked areas shall be deep-ripped (24" to 36") to
mitigate compaction.
7.5.j.4.B. Soil physical quality shall be inadequate if
it inhibits water infiltration or prevents root
penetration or if their physical properties or
water-supplying capacities cause them to restrict root
growth of trees. Slopes greater than 50% shall be
compacted no more than is necessary to achieve
stability and non-erodability.
7.5.j.4.C. The Director shall require the permittee to
leave soil surfaces rough with random depressions across the entire surface to catch seed and sediment,
conserve soil water. Organic debris such as forest
litter, logs, and stumps may be left on and in the
soil.
7.5.j.5. Limiting And Fertilizing: The Permittee shall
submit a liming and fertilizing plan. The Director
shall assure that the liming and fertilizing plan is
appropriate for establishing the ground cover
vegetation.
7.5.j.6. Ground Cover Vegetation:
7.5.j.6.A. The Director shall require the permittee to
establish a temporary vegetative cover as
contemporaneously as practicable with backfilling and
grading. This cover shall consist of a combination of
native and domesticated non-invasive cool and warm
season grasses and other herbaceous vine or shrub
species including legume species and ericaceious
shrubs. All species shall be slow growing. The ground
cover vegetation shall be capable of stabilizing the
soil from excessive erosion. Seeding rates and
composition must be in the Homestead Plan. The following ground cover mix and seeding rates
(pounds/acre) shall be used: winter wheat (15
lbs/acre, fall seeding), foxtail millet (5 lbs./acre,
summer seeding), redtop (2 lbs/acre), perennial
ryegrass (2 lbs/acre), orchardgrass (5 lbs/acre),
weeping lovegrass (2 lbs/acre) kobe lespedeza (5
lbs/acre), birdsfoot trefoil (10 lbs./acre), and white
clover (3 lbs/acre). Kentucky-31 fescue, serecia
lespedeza, all vetches, clovers (except ladino and
white clover) and other aggressive or invasive species
shall not be used. On south- and west-facing slopes
with a soil pH of 6.0 or greater, the four grasses in
the mixture shall be replaced with 20 lbs/acre of
warm-season grasses consisting of the following
species: Niagara big bluestem (95 lbs/acre), Camper
little bluestem (2 lbs/acre), Indian grass (2
lbs/acre), and Shelter switch grass (1 lb/acre), or
other varieties of these species approved by the
Director. Also, a selection of at least 3 ericaceous
shrub species shall be included in the ground cover
mix.
7.5.j.6.B. The Permittee may regrade and reseed only
those rills and gullies that are unstable.
7.5.j.7. Front Faces Of Valley Fills:
7.5.j.7.A. Front faces of valley fills shall be exempt
from the requirements of this rule except that:
7.5.j.7.A.1. They shall be graded and compacted no more
than is necessary to achieve stability and
non-erodability.;
7.5.j.7.A.2. No shales may be present in the upper four
feet of surface material;
7.5.j.7.A.3. The upper four feet of surface material
shall be composed of soil and weathered brown sandstone
when available, unless the Director determines other
material is necessary to achieve stability;
7.5.j.7.A.4. The groundcover mixes described in
subparagraph shall be used unless the Director requires
a different mixture.
7.5.j.7.A.5. Kentucky 31 fescue, serecia lespedeza,
vetches, clovers (except ladino and white clover) or
other invasive species may not be used; and
7.5.j.7.B. Although not required by this rule, native, non-invasive trees may be planted on the faces of
fills.
7.5.k. Requirements For Reclamation Maps. An
appropriately scaled, "as-built" topographic map of the
Homestead Area shall be prepared and submitted as part
of the permit application. An identically scaled
*overlay* map showing the elevation contours at the
base of all mined areas as well as the original ground
contour of all excess mine spoil storage areas shall
accompany the as-built map. The overlay map shall
identify all backfilled mine sites and excess
mine-spoil storage areas. The overlay map shall depict
the boundaries of all parcels, areas of mine spoil
specifically compacted for the placement of structures,
easements, and areas that the Director may designate
for special or limited uses. All post-reclamation maps
shall be prepared under the direction of and certified
by a registered professional engineer and shall be
recorded with the county within one year following the
final reclamation of the proposed Homestead Area.
7.5.l. Homestead Village.
7.5.l.1. Homestead Village: The Homestead Village
provides for a residential development at a higher
density than in rural Homestead parcels. The Village
is intended to:
7.5.l.1.A. Encourage mixed residential and commercial
land uses, and
7.5.l.1.B. At least 20% of the Homestead Area shall be
composed of Village parcels.
7.5.l.2. Village Parcel Requirements:
7.5.l.2.A. Each Village homestead parcel shall be no
larger than one acre in size.
7.5.l.2.B. Each parcel shall have a minimum road
frontage of 40 feet. No pipe stem parcel arrangements
are permitted.
7.5.l.2.C. Each parcel shall be graded evenly to 5%
maximum.
7.5.l.3. Common Lands: In addition to the Civic
Parcels and Conservation Easements, each Homestead Area
shall include a reserve of 10% of the land as a common
area. The Common Land shall be conveyed to the
Community Association. The planning and maintenance of the Common Land shall be the responsibility of the
Community Association.
7.5.l.4. Public Nursery: Each Village Homestead shall
designate an area for a Public Nursery constructed and
planted by the Permittee at no cost to the
Homesteaders. The nursery may be located adjacent to
the Common Land but shall not constitute the required
Common Land area. The Nursery shall provide woody
plants of high quality and appearance for the use of
the Homesteaders as specified below.
7.5.l.4.A. The nursery shall be 1 acre per 30 acres of
Homestead Area. The Public Nursery shall be a civic
parcel. The Permittee shall plant the nursery with the
same species and to the same standards as required in
the Conservation Easement. Once bond is released, the
Community Association shall be responsible for
maintaining the nursery. Success standards shall be
the same as for the conservation easements.
7.5.l.4.B. The nursery plants shall consist of at least
six species from the following list: white oak, red
oak, other native oaks, white ash, yellow poplar, black walnut, sugar maple, black cherry, or native hickories.
7.5.l.4.C. Adequate water supply shall be provided for
the nursery. This may be achieved through any of the
water supply means specified or through the storm water
drainage system.
7.5.l.4.D. The nursery shall be maintained in manner
consistent with the healthy development of the plants.
The nursery plants shall meet the following criteria
upon conveyance: 1) in regular form for the species,
2) 80% live branches, and 3) color consistent with the
species. Materials not meeting the specifications
shall be replaced with like species by the permittee.
After final bond release, the nursery shall be conveyed
to the Community Association.
7.5.l.4.E. Each Homesteader shall be allowed to take
trees from the nursery as determined by the Community
Association. The remainder of the trees shall be for
the common landscapes.
7.5.m. Community Association:
7.5.m.1. At the completion of the lottery, a Community
Association shall be established among the designated Homesteaders for each Homestead Area. The Association
shall maintain and administer the public areas,
Conservation Easements and Civic Parcels of the
Homestead and may levy membership fees.
7.5.m.2. By-laws for the Community Association shall be
developed by the Escrow Agent, working with the
Homesteaders and a qualified design professional as
defined by this rule. The permittee shall pay the
qualified land designer for such services. The by-laws
may establish rules for building standards and other
Homestead Area rules, as appropriate.
7.5.m.3. Membership in the association is mandatory for
all Homesteaders and their successors.
7.5.m.4. The association shall obtain liability
insurance for its property and shall be responsible for
maintenance of insurance and taxes on undivided open
space. The association may place liens on the homes or
houselots of its members who fail to pay their
association dues in a timely manner. Such liens may
require the imposition of penalty interest charges.
7.5.m.5. The association shall administer common facilities and pay for maintaining and developing such
facilities.
7.5.n. Interim Homestead Management.
7.5.n.1. The Director or the Director's designee shall
administer the Homestead Selection Lotteries.
7.5.n.2. The Escrow Agent shall monitor the 5-year
occupancy requirement for each Homestead Parcel and
transfer of the titles of the surface estates to the
qualified Homesteaders.
7.5.n.3. The Escrow Agent shall manage and administer
the homestead between final bond release and the time
when all of the titles to the Homestead Parcels have
been transferred and duly recorded with the Clerk of
the County.
7.5.n.4. Funding these services shall be guaranteed by
an insured Bank account established by the Permittee.
7.5.n.5. Before approving any Homestead variance, the
Director shall find, in writing, that the funds in the
account are sufficient to pay for these services.
7.5.n.6. After final bond release, this account shall
be administered by the Escrow Agent.
7.5.n.7. The Escrow Agent shall receive the surface
rights to the entire Homestead Area and all-weather and
main roads before mining begins.
7.5.n.8. The Escrow Agent shall be charged with
responsibility for transferring the surface rights in
escrow to the Homesteaders, the Community Association,
or the State or county road authority.
7.5.n.9. Such transfers shall promptly occur upon
certification by the Escrow Agent that the Homesteader
has met the requirements of this rule.
7.5.n.10. Before the homesteader receives title,
property may revert to the Escrow Agent, when after
notice and hearing, the Escrow Agent determines that
the homesteader has not abided by this rule. The
Escrow Agent's determination shall be reviewable by the
Circuit Court of the County in which the homestead
parcel is located.
7.5.n.11. If developed property reverts to Escrow, the
Escrow Agent shall promptly sell the property and remit
proceeds, less costs, to the homesteader, up to the
value of the homesteader's investment.
7.5.n.12. Because deeds to Homestead Parcels will not
be transferred to Homesteaders before a Homesteader has
lived on a parcel for five years, lending institutions
may be reluctant to make loans to Homesteaders before
the five-year period has expired. Accordingly, to
assure that lending institutions are willing to make
loans to Homesteaders during this period, the Escrow
Agent shall establish a system to provide mortgage
insurance to homesteaders so that lenders will be able
to finance private development of homestead parcels.
The Escrow Agent shall have all powers necessary to
structure loans and other necessary transactions so
lenders are reasonably secure.
7.5.o. Bond Release:
7.5.o.1. Before approving Phase I bond release, the
Director shall assure that the soil is in place, the
vegetative cover has been established, that the water
system has been completed, that the roads have been
completed and transferred to the State or county road
authority, and that the main electricity transmission
line is in place.
7.5.o.2. Phase II bond release may not occur before two
years have passed since Phase I bond release. Before
approving Phase II bond release, the Director shall
assure that the vegetative cover is still in place.
The Director shall further assure that the tree
survival on the Conservation Easements and Public
Nurseries are no less than 300 trees per acre (80% of
which must be species from the approved list).
Furthermore, in the Conservation Easement and Public
Nursery areas, there shall be a 70% ground cover where
ground cover includes tree canopy, shrub and herbaceous
cover, organic litter, and rock cover. Trees and
shrubs counted in considering success shall be healthy
and shall have been in place at least two years, and no
evidence of inappropriate dieback. Phase II bond
release shall not occur until the service drops for the
utilities and communications have been installed to
each Homestead Parcel.
7.5.o.3. The Director may authorize Phase III bond
release only after all parcels in the Homestead Areas
are certified and ready for occupancy.
7.5.o.4. Once final bond release is authorized, the
Permittee's responsibility for implementing the
Homestead Plan shall cease.'
And,
On page 129, subsection 14.12.a.1, by following the
words 'industrial, commercial, residential' by striking
the word 'woodlands' and inserting in lieu thereof
'commercial forestry'."
(v) The legislative rule filed in the state register on
the sixth day of August, one thousand nine hundred
ninety-nine, authorized under the authority of section
two, article four, chapter twenty-two of this code,
modified by the division of environmental protection to
meet the objections of the legislative rule-making
review committee and refiled in the state register on
the twenty-fifth day of January, two thousand, relating
to the division of environmental protection (mining and
restoration for sandstone, limestone and sand, 38 CSR
2A), is disallowed and not authorized.
(w) The legislative rule filed in the state register on
the sixth day of August, one thousand nine hundred ninety-nine, authorized under the authority of section
two, article four, chapter twenty-two of this code,
modified by the division of environmental protection to
meet the objections of the legislative rule-making
review committee and refiled in the state register on
the twenty-fifth day of January, two thousand, relating
to the division of environmental protection (mining and
reclamation of minerals other than coal, limestone,
sandstone and sand, 38 CSR 2B), is disallowed and not
authorized.
(x) The legislative rule filed in the state register on
the fifth day of August, one thousand nine hundred
ninety-nine, authorized under the authority of section
twenty, article fifteen, chapter twenty-two of this
code, modified by the division of environmental
protection to meet the objections of the legislative
rule-making review committee and refiled in the state
register on the twenty-first day of January, two
thousand, relating to the division of environmental
protection (sewage sludge management, 33 CSR 2), is
authorized.
(y) The legislative rule filed in the state register on
the fourth twenty-third day of August, one thousand
nine hundred ninety-nine two thousand, authorized under
the authority of section six, article eighteen, chapter
twenty-two of this code, modified by the division of
environmental protection to meet the objections of the
legislative rule-making review committee and refiled in
the state register on the twenty-first day of January,
two thousand, relating to the division of environmental
protection (hazardous waste management, 33 CSR 20), is
authorized.
(z) The legislative rule filed in the state register on
the twenty-eighth day of July, one thousand nine
hundred ninety-nine, authorized under the authority of
section ten, article eleven, chapter twenty-two of this
code, relating to the division of environmental
protection (water pollution control permit fee
schedule, 47 CSR 26), is authorized.
(aa) The legislative rule filed in the state register
on the twenty-eighth day of July, one thousand nine
hundred ninety-nine, authorized under the authority of section three, article two, chapter twenty-two-c of
this code, relating to the division of environmental
protection (state water pollution control revolving
fund program, 47 CSR 31), is authorized.
(bb) The legislative rule filed in the state register
on the third day of August, one thousand nine hundred
ninety-nine, authorized under the authority of section
five, article twelve, chapter twenty-two of this code,
relating to the division of environmental protection
(groundwater protection standards at steam electric
generating facilities, 47 CSR 57A), is authorized.
(cc) The legislative rule filed in the state register
on the first day of January, one thousand nine hundred
sixty-five, authorized under the authority of section
seven, article five, chapter twenty-two of this code
relating to the division of environmental protection
(to prevent and control air pollution from coal refuse
disposal areas, 45 CSR 1), is repealed.
NOTE: The purpose of this bill is to authorize the
Division of Environmental Protection to promulgate a
legislative rule relating to Hazardous Waste
Management.
Strike-throughs indicate language that would be
stricken from the present law, and underscoring
indicates new language that would be added.